Xanthakey v. Hayes

• Decision Date: 08 March 1928
• Citation: Xanthakey v. Hayes, 107 Conn. 459, 140 A. 808 (Conn. 1928)
• Court: Connecticut Supreme Court
• Parties: XANTHAKEY ET AL. v. HAYES.

140 A. 808

107 Conn. 459

XANTHAKEY ET AL. v. HAYES.

Supreme Court of Errors of Connecticut.

March 8, 1928

Appeal from Superior Court, New Haven County; Alfred C. Baldwin Judge.

Suit by Anthony P. Xanthakey and others against Ellen E. Hayes for mandatory injunction to require defendant to renew a written lease and to restrain her from bringing summary process to evict plaintiffs and from doing any act interfering with plaintiff's possession and enjoyment of the leased premises.Judgment for plaintiffs on trial to the court, and defendant appeals.No error.

The trial court found these facts: On April 17, 1917, Grace F Rice and plaintiffs entered into a written lease of a building in Waterbury for a term of ten years.The defendant acquired title to this property in 1919, it then being of the value of $90,000.Among other provisions the lease provided that:

" And it is further agreed that the lessee may have an extension of five years from the termination of this lease at the annual rental of $7,000 per year, payable at the rate of $583.34 per month, in advance.In the event that the lessee desires said extension they shall give notice to the lessor to that effect in writing at least 60 days before the termination of this lease, and in default thereof this lease will terminate by lapse of time on the 28th of February 1927."

From 1918 to 1920, inclusive, the plaintiffs expended $25,000 for alterations and improvements in the building in accordance with the provisions of the lease.On December 28, 1924, a fire rendered this building untenantable.After the fire defendant neglected to restore the premises to a tenantable condition, claiming that that obligation rested on plaintiffs.Upon their refusal to either restore the building or pay rent the defendant brought an action of summary process against plaintiffs, and claimed that they had committed waste.The court rendered judgment in the action of summary process for the plaintiffs herein, found that the building was untenantable, and held that there was no obligation on plaintiffs to restore the building or pay rent during the period of untenantability, and that plaintiffs had violated none of the terms of the lease.No appeal was taken from this judgment.The building remained untenantable for about 15 months, but after the summary process judgment, defendant restored it to a tenantable condition and thereupon plaintiffs reentered.The improvements which plaintiffs had made in the building preceding the fire were destroyed by it except those of the value of about $1,000.After re-entry plaintiffs paid the rent as they had previously done prior to the 10th of each month, except that on two or three occasions they paid two or three days after the 10th of the month, although rent was payable under the lease on the 1st day of each month in advance.Since re-entering these premises plaintiffs have expended in improvements in the building $3,000 in the expectation of enjoying its occupancy under the terms of the lease, including such renewal term as the lease provided for.They established their restaurant in one of the stores, and from the business made a sufficient profit to carry on the business and provide a living for their families.If plaintiffs fail to secure the extension of their lease they will lose the improvements placed in the building since the fire, and those remaining in the building after the fire, all of the value of about $4,000, together with the good will of their business, which will be a substantial loss.Since the institution of this action defendant has brought an action of summary process against plaintiffs seeking to evict them and their subtenants, upon the sole ground that the lease of the plaintiffs has expired by lapse of time.One of the plaintiffs' subtenants has threatened them with an action for damages for failure to secure such extension of their lease, which is likely to result in serious loss to them.If plaintiffs desired to take advantage of the renewal clause of the lease they were required under the lease to give written notice of such intention at least 60 days before the termination of their lease, which would have been on December 31, 1926; in fact, they gave it on January 3, 1927.The first day of the period of neglect in giving this notice was a holiday, the second a Sunday, and on the following day, Monday, upon consulting their attorney, they gave the required written notice.On January 5, 1927, defendant acknowledged in writing the receipt of the notice, and advised plaintiffs that she would consider the lease terminated on February 28, 1927, as provided by its terms.The failure of the plaintiffs to give this notice within the required time was due to mere forgetfulness, and not to willful or gross negligence, on their part.

The defendant has suffered no damages by reason of the failure to give the notice three days earlier, through a change in the relation of the defendant to the property.If the defendant regains possession of the property free from the incumbrance of the lease to plaintiffsshe could either sell it or lease it more advantageously.The defendant has refused to enter into a new lease with plaintiffs in accordance with the provisions of the renewal clause of their lease.The plaintiffs paid the rent for the month of January following the fire in order to protect their interest in the property and before the question of the untenantable character of the building had been determined.The accumulation of water in the cellar and the freezing of that and the pipes caused considerable damage to the portion of the building remaining after the fire.

The lease also contained the provision:

" And it is further agreed that the lessee may sublet said premises in whole or in part to a corporation or corporations which they may organize, but the lessee shall be liable for the rent for the full term even though the lessor accepts it from the lessee."

The Xanthos Candy Company, a subtenant of plaintiffs, was occupying one of the stores in this building in the spring of 1926, and had been a subtenant in it since January 1, 1920.A week before Easter Sunday, 1926, one of the officers of this company, without the knowledge or consent of either of the plaintiffs, permitted one Leary to occupy space in the store for a week for the sale of flowers.The selling of flowers by Leary in the store was known to defendant's son and agent, who made no objection to it and continued to receive rent as before, and never made complaint of this to plaintiffs except by letter of April 7, 1926, in which defendant called the attention of plaintiffs to the fact that waivers of failure to pay rent when due and of subletting without consent were not to be construed as waivers of such violations of the lease in the future, and that in case of future violations of the lease in payment of rent, or in subletting, defendant would treat the lease as ended.The plaintiffs and one Hertzmark agreed that plaintiffs would organize a corporation for conducting a shoe store, give the corporation to be formed a lease and then turn over the control of the corporation to Hertzmark.Pursuant to this agreement the plaintiffs in May, 1926, organized the Dobbs Shoe Company, the corporation having a capital stock of $5,000 divided into 50 shares of a par value of $100.One of the plaintiffs subscribed and paid for 25, the other for 24 shares, and the wife of one of the plaintiffs for one share.As soon as the certificate of organization was filed the plaintiffs leased this store to this corporation and sold for cash 47 shares of this stock to Hertzmark, one share to his manager, and each of the plaintiffs retained a share.The certificate of organization was filed May 12, 1926.Before the organization of the corporation and the execution of the lease the plaintffs consulted counsel and were advised that under their lease they could sublet this store to the corporation in the manner in which this was done.The plaintiffs had during the term of their lease organized corporations in a similar manner and executed leases to such corporations.

William E. Thoms, of Waterbury, for appellant.

Lawrence L. Lewis, of Waterbury, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

WHEELER, C.J.(after stating the facts as above).

The defendant's requests that paragraphs 7 and 18 of the finding be stricken out are denied except that " some of the subtenants" as stated in paragraph 18 is changed to " one of the subtenants."Paragraphs 28, 29, and 39 of the finding are stricken out as conclusions of law.Defendant's requests that paragraphs 4, 13, 18, 19, 23, and 24 of the draft finding be added to the finding are denied as contrary to the evidence, or based on conflicting evidence, and her requests that paragraphs 12, 16, 17, 20, and 21 of the draft finding be added to the finding are granted substantially in the form requested.

The plaintiffs seek a mandatory injunction ordering defendant to renew their lease for the period of renewal specified in the lease, and restraining defendant from bringing an action of summary process to evict them.The defendant answered admitting some and denying other allegations.Defendant now assigns as error that plaintiffs are not entitled to the equitable relief prayed for because of their violations of the covenants of their lease in making the lease to the Dobbs Shoe Company, in permitting the occupancy of the store by Leary, in the conduct of the plaintiffs subsequent to the fire in relation to the leased premises damaged by exposure to the elements, and in the failure to give notice of the intention of plaintiffs to renew the lease.It was the duty of the defendant to have pleaded such...